Glass v. State

DENSON, J,

The appellant, J. D. Glass, was jointly indicted and tried with one Frank Bedsole for tiie murder of Marshall Rutherford. The trial resulted in the acquittal of Bedsole and the conviction of Glass of murder in the second degree. From the judgment of conviction, Glass has appealed.

The killing was done by Glass with a pistol on the first night in May, 1905, in the city of Montgomery, on what is known as “Factory Row” and across the road from the house of James Milner. There was a dance in progress at Milner’s house, and several persons were gathered there. Among them were the deceased and his three Ii ctle girls. Besides there were a number of ladies in the house. All the occurrences and conversations of the evening from the time defendant Glass appeared at James Milner’s house, until the killing of the deceased, and in which defendant Glass participated, were shown to be but parts of a continuous transaction, occurring within a brief space of time, and there was no error in permitting the state’s witness James Milner to testify to them. — Armor's *55 Case, 63 Ala. 173 ; Stitt's Case, 91 Ala. 10 , 8 South. 669 , 24 Am. St. Rep. 853 ; Jordan’s Case, 81 Ala. 20 , 1 South. 577 , s. c. 79 Ala. 9 ; Churchwell’s Case, 117 Ala. 126 , 23 South. 72 .

• The defendant Glass was arrested several hours after the shooting by Policeman Avant, assisted by Policeman McDade. The fact that defendant threw his hands behind him and drew his pistol at the time of the arrest was properly allowed to be proved. The conduct and demean- or of defendant at the time of his arrest are competent evidence against him. — Henry’s Case, 107 Ala. 22 , 19 South. 23 ; Bowle’s Case, 58 Ala. 335 .

The declaration made by defendant Glass about an hour or an hour and a half before the killing, while he and defendant Bedsole Avere together, Avhen taken in connection' with the other evidence, Avas properly admitted as tending to sIioav a malevolent purpose on the part of him and Bedsole to go to the dance for an unlaAvful purpose. Witness McHugh Avas permitted to testify that at Mc.Neil’s store, about a half hour before the shooting he srav defendant Glass Avhisper to one Redmond, and that immediately»' Redmond pulled his pistol out and gave it to Glass. This eAddence Avas properly admitted. It tended to show preparation on the part of Glass. — Ford’s Case, 71 Ala. 385 ; Finch's Case, 81 Ala. 41 , 1 South. 565 .

The motion to exclude the evidence of the witness Penler is so patently Avithout merit as to require no discus sion.__Henry’s Case, 107 Ala. 22 , 19 South. 23 .

Defendant’s Avitness Carden haAdng testified that lie was a special friend of the deceased, the state Avas properly alloAved, against the objections made, to ask the question that Avas objected to. This question was asked for the purpose of shoAving enmity on the part of the Avitness, and thus to contradict his claim of special friendship. This is ahyays alloAvable. — McHugh’s Case, 31 Ala. 317 ; Haralson’s Case, 82 Ala. 47 , 2 South. 765 ; Yarbrough’s Case, 71 Ala. 376 ; Burke’s Case, 71 Ala. 377 .

The witness cannot be interrogated with respect to his own general character for truth and veracity; and the court committed no error in its rulings, on questions propounded on cross-examination by defendant to the Avitness Law.

*56 State’s witness McSwain was' asked on cross-examination this question: “Did you ever have any trouble with him (defendant) ?” The witness answered, “Yes, in this way.” The bill of exceptions recites that counsel for defendant refused to- let the witness state what the trouble was. The solicitor then asked the witness this question : “Explain what the trouble was.” It may be that illegal evidence would have been responsive to the question, and the court cannot be put in error for sustaining an objection to such a question. — Ross' Case, 139 Ala. 144 , 36 South. 718 . But when the question also calls for evidence which would be competent, and the court overrules an objection to it, the court will not be put in error for the ruling, and if illegal evidence is embraced in the answer the remedy is by motion to exclude. It is apparent that the state had the right to show whether the trouble was a fight, a personal difficulty, or other kind of trouble, without going into details. — Jones' Case, 76 Ala. 8 . There was no motion to exclude, and we need not consider the answer to the question.

That Mrs. Kirby had been summoned as a witness in behalf of the defendant was immaterial, and the solicitor was improperly allowed to show that fact by her. As has been recently said by us, the only possible purpose of such a question and its answer was to prejudice the jury against, the defendant.' — Neilson’s Case, (Ala.) 40 South P. 221.

The record contains no evidence that the deceased’s three children were left to charity or his friends, and yet the solicitor stated in his argument to the jury: “The defendant has takeli the life of Rutherford, and left his three orphan children to charity and to his 'friends.” This cannot be considered as a mere inference, but is the statement of a fact, and the court should have excluded that part of the statement embraced in defendant’s motion. —Neilson's Case, supra; Wolff v. Minnis, 74 Ala. 386 ; Davis v. Common Council of Alexander City, 137 Ala. 206 , 33 South. 863 .

Charges 28 and 4, requested by the defendant, were properly refused). — McClellan's Case, 140 Ala. 99 , 37 South. 93 :

*57 Charge 11 was properly refused. — Jackson’s Case, 136 Ala. 22 , 31 South. 188 ; Hornsby’s Case, 94 Ala. 55 , 10 South. 522 ; Griffith’s Case, 90 Ala. 583 , 8 South. 812 .

Charge 5 ivas argumentative, and ivas- properly refused.

The affirmative charge requested by defendant is absolutely without merit.

For the errors pointed out, the judgment is reversed, and the cause remanded.-

Reversed and remanded.

Weakley, C. J., and Haralson and Dowdell, J-T., concur.